Page 5227 - Week 16 - Thursday, 28 November 1991
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Neither principle can claim absolute supremacy. There is not and there never has been an absolute right to free speech. It is a matter of balancing the individual's right with the rights of other individuals and the legitimate interests of the state.
Recent events in China poignantly demonstrate the difference in balance which may be struck in Western democracies as opposed to totalitarian states, where the voices of individuals are ruthlessly silenced and into that silence is poured abuse of the dead and lies to protect the state from criticism.
It is in this perspective that we may see that freedom of expression is an elemental value. It provides the foundation to establish and to protect other human rights. Those rights can only flourish in democracies which are formed on a genuine respect for the individual voice. The primal quality of free speech must never be forgotten and must never be undervalued. But, as I have said, freedom of expression is not an absolute principle, its practice must be tempered by other values which detail the nature of the community that we wish to create and, if Tiananmen Square provides a graphic image of liberty crushed under tanks, then the walls of toilets and the walls of public buildings in Melbourne, which are daubed with harmful graffiti, provide images of liberty perverted.
I do not underestimate the potential of language to hurt. I refer to the seminal statement of Justice Felix Frankfurter of the United States Supreme Court:
"insulting or fighting words, which by their very utterance inflict injury or tend to incite to immediate breach of the peace, these utterances have no essential value as a step to the truth. Any benefit that may be derived from them is clearly outweighed by the social interest in order and morality".
First, that passage clearly draws attention to the fact that fighting words may have a direct connection with actual violence. Where words incite or precipitate particular acts of violence they are the literal fuse to an explosion. There is no argument with that. They ought to be punished by law and, in fact, they are at the moment. Public order offences have the potential to protect against threats of violence and incitement to violence.
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